GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

H	1 

HOUSE BILL 1245

Short Title:  Airspace Intrusion Protection.	(Public)
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Sponsors: Representatives Abernethy; Barbee, Creech, Diggs, Duncan, Grimmer, S. Hunt, R. Hunter, Kerr, Lilley, Payne, and Robinson.
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Referred to:  Infrastructure.
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April 12, 1989

A BILL TO BE ENTITLED
AN ACT TO PROTECT AGAINST AIRSPACE INTRUSIONS AT PUBLICLY OWNED AIRPORTS BY UPDATING THE MODEL AIRPORT ZONING ACT AND BY ADDING THE PUBLIC AIRPORT AIRSPACE INTRUSION PROTECTION ACT OF 1989.
The General Assembly of North Carolina enacts:
Section 1.  Article 4 of Chapter 63 of the General Statutes reads as rewritten:
                            "ARTICLE 4.
"Model Airport Zoning Act.
“Part 1. General Provisions.
"§ 63-30. Airport obstructions not in public interest.
It is hereby found and declared that an airport obstruction endangers the lives and property of users of the airport and of occupants of land in its vicinity, and also, if of the obstruction type, in effect reduces the size of the area available for the landing, taking off and maneuvering of aircraft, thus tending to destroy or impair the utility of the airport and the public investment therein, and is therefore not in the interest of the public health, public safety, or general welfare.
"§ 63-31. Adoption of airport zoning regulations.
(a)	Every political subdivision may adopt, administer, and enforce, under the police power and in the manner and upon the conditions hereinafter prescribed, airport zoning regulations, which regulations shall divide the area surrounding any airport within the jurisdiction of said political subdivision into zones, and, within such zones, specify the land uses permitted, and regulate and restrict the height to which structures and trees may be erected or allowed to grow. In adopting or revising any such zoning regulations, the political subdivision shall consider, among other things, the character of the flying operations expected to be conducted at the airport, the nature of the terrain, the height of existing structures and trees above the level of the airport, the possibility of lowering or removing existing obstructions, and the views of the agency of the federal government charged with the fostering of civil aeronautics, as to the aerial approaches necessary to safe flying operations at the airport.
(b)	In the event that a political subdivision has adopted, or hereafter adopts, a general zoning ordinance regulating, among other things, the height of buildings, any airport zoning regulations adopted for the same area or portion thereof under this Article may be incorporated in and made a part of such general zoning regulations, and be administered and enforced in connection therewith, but such general zoning regulations shall not limit the effectiveness or scope of the regulations adopted under this Article.
(c)	Any two or more political subdivisions may agree, by ordinance duly adopted, to create a joint board and delegate to said board the powers herein conferred to promulgate, administer and enforce airport zoning regulations to protect the aerial approaches of any airport located within the corporate limits of any one or more of said political subdivisions. Such joint board shall have as members two representatives appointed by the chief elected officer of each political subdivision participating in the creation of said board and a chairman elected by a majority of the members so appointed.
(d)	The jurisdiction of each political subdivision is hereby extended to the promulgating, adopting, administering and enforcement of airport zoning regulations to protect the approaches of any airport or landing field which is owned by said political subdivision, or which is owned by an airport authority or joint agency of which that subdivision is a member or appoints members, although the area affected by the zoning regulations may be located outside the corporate limits or extraterritorial planning jurisdiction of said political subdivision. In the case of a joint agency, or an airport authority where more than one political subdivision appoints members, in order to exercise any power under this subsection outside the zoning jurisdiction, all the political subdivisions of the joint agency or all the political subdivisions appointing members of the authority must adopt the zoning regulations. In case of conflict with any airport zoning or other regulations promulgated by any political subdivision, the regulations adopted pursuant to this section shall prevail.
(e)	All airport zoning regulations adopted under this Article shall be reasonable, and none shall require the removal, lowering, or other change or alteration of any structure or tree not conforming to the regulations when adopted or amended, or otherwise interfere with the continuance of any nonconforming use, except as provided in G.S. 63-32(a).
"§ 63-32. Permits, new structures, etc., and variances.
(a)	Permits. – Where advisable to facilitate the enforcement of zoning regulations adopted pursuant to this Article, a system may be established by any political subdivision for the granting of permits to establish or construct new structures and other uses and to replace existing structures and other uses or make substantial changes therein or substantial repairs thereof. In any event, before any nonconforming structure or tree may be replaced, substantially altered or repaired, rebuilt, allowed to grow higher, or replanted, a permit must be secured from the administrative agency authorized to administer and enforce the regulations, authorizing such replacement, change or repair. No such permit shall be granted that would allow the structure or tree in question to be made higher or become a greater obstruction to air navigation than it was when the applicable regulation was adopted; and whenever the administrative agency determines that a nonconforming structure or tree has been abandoned or more than eighty percent (80%) torn down, destroyed, deteriorated, or decayed: (i) no permit shall be granted that would allow said structure or tree to exceed the applicable height limit or otherwise deviate from the zoning regulations; and (ii) whether application is made for a permit under this paragraph or not, the said agency may by appropriate action compel the owner of the nonconforming structure or tree, at his own expense, to lower, remove, reconstruct, or equip such object as may be necessary to conform to the regulations or, if the owner of the nonconforming structure or tree shall neglect or refuse to comply with such order for 10 days after notice thereof, the said agency may proceed to have the object so lowered, removed, reconstructed, or equipped. Except as indicated, all applications for permits for replacement, change or repair of nonconforming uses shall be granted.
(b)	Variances. – Any person desiring to erect any structures, or increase the height of any structure, or permit the growth of any tree, or otherwise use his property, in violation of airport zoning regulations adopted under this Article, may apply to the board of appeals, as provided in G.S. 63-33(c), for a variance from the zoning regulations in question. Such variances shall be allowed where a literal application or enforcement of the regulations would result in practical difficulty or unnecessary hardship and the relief granted would not be contrary to the public interest but do substantial justice and be in accordance with the spirit of the regulations and this Article.
(c)	Obstruction Marking and Lighting. – In granting any permit or variance under this section, the administrative agency or board of appeals may, if it deems such action advisable to effectuate the purposes of this Article and reasonable in the circumstances, so condition such permit or variance as to require the owner of the structure or tree in question to permit the political subdivision, at its own expense, to install, operate, and maintain suitable obstruction markers and obstruction lights thereon.
"§ 63-33. Procedure.
(a)	Adoption of Zoning Regulations. – No airport zoning regulations shall be adopted, amended, or changed under this Article except by action of the legislative body of the political subdivision in question, or the joint board provided for in G.S. 63-31(c), after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. A notice of the public hearing shall be given once a week for two successive calendar weeks in a newspaper having general circulation in the area of the airport. The notice shall be published the first time not less than 10 days nor more than 25 days before the date fixed for the hearing. In computing such period, the day of publication is not to be included but the day of the hearing shall be included.
(b)	Administration of Zoning Regulations – Administrative Agency. – The legislative body of any political subdivision adopting airport zoning regulations under this Article may delegate the duty of administering and enforcing such regulations to any administrative agency under its jurisdiction, or may create a new administrative agency to perform such duty, but such administrative agency shall not be or include any member of the board of appeals. The duties of such administrative agency shall include that of hearing and deciding all permits under G.S. 63-32(a), but such agency shall not have or exercise any of the powers delegated to the board of appeals.
(c)	Administration of Airport Zoning Regulations – Board of Appeals. – Airport zoning regulations adopted under this Article shall provide for a board of appeals to have and exercise the following powers:
(1)	To hear and decide appeals from any order, requirement, decision, or determination made by the administrative agency in the enforcement of this Article or of any ordinance adopted pursuant thereto;
(2)	To hear and decide special exceptions to the terms of the ordinance upon which such board may be required to pass under such ordinance;
(3)	To hear and decide specific variances under G.S. 63-32(b).
(d)	Where a zoning board of appeals or adjustment already exists, it may be designated as the board of appeals. Otherwise, the board of appeals shall consist of five members, each to be appointed for a term of three years and to be removable for cause by the appointing authority upon written charges and after public hearing.
The board shall adopt rules in accordance with the provisions of any ordinance adopted under this Article. Meetings of the board shall be held at the call of the chairman and at such other times as the board may determine. The chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be public. The board shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall immediately be filed in the office of the board and shall be a public record.
Appeals to the board may be taken by any person aggrieved, or by any officer, department, board, or bureau of the political subdivision affected, by any decision of the administrative agency. An appeal must be taken within a time, as provided by the general rule of the board, by filing with the agency from which the appeal is taken and with the board, a notice of appeal specifying the grounds thereof. The agency from which the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.
An appeal shall stay all proceedings in furtherance of the action appealed from, unless the agency from which the appeal is taken certifies to the board, after the notice of appeal has been filed with it, that by reason of the facts stated in the certificate a stay would, in its opinion, cause imminent peril to life or property or that because the violation charged is transitory in nature a stay would seriously interfere with enforcement of the ordinance. In such case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board or by a court of record on application on notice to the agency from which the appeal is taken and on due cause shown.
The board shall fix a reasonable time for the hearing of the appeal, give due notice to the parties in interest, and decide the same within a reasonable time. 
The board may, in conformity with the provisions of this Article, reverse or affirm, wholly or partly, or modify, the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the administrative agency from which the appeal is taken.
The concurring vote of a majority of the members of the board shall be sufficient to reverse any order, requirement, decision, or determination of the administrative agency, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in such ordinance.
"§ 63-34. Judicial review.
				(a)	Every decision of the board shall be subject to review by the superior court by proceedings in the nature of certiorari. Any petition for review by the superior court shall be filed with the clerk of superior court within 30 days after the decision of the board is filed in such office as the ordinance specifies, or after a written copy thereof is delivered to every aggrieved party who has filed a written request for such copy with the secretary or chairman of the board at the time of its hearing of the case, whichever is later. The decision of the board may be delivered to the aggrieved party either by personal service or by registered mail or certified mail return receipt requested.
	(e) Costs shall not be allowed against the board of appeals unless it appears to the court that it acted with gross negligence, in bad faith, or with malice, in making the decision appealed from.
"§ 63-35. Enforcement and remedies.
Subject to the limitations of the ordinance, any ordinance adopted pursuant to authority conferred by this Article may be enforced by any remedy provided by G.S. 160A-175 in the case of city ordinances, and by any remedy provided by G.S. 153A-123 in the case of county ordinances.
"§ 63-36. Acquisition of air rights.
In any case in which:
(1)	It is desired to remove, lower, or otherwise terminate a nonconforming use; or
(2)	The approach protection necessary cannot, because of constitutional limitations, be provided by airport zoning regulations under this Article; or
(3)	It appears advisable that the necessary approach protection be provided by acquisition of property rights rather than by airport zoning regulations,
the political subdivision within which the property or nonconforming use is located or the political subdivision owning the airport or served by it may acquire, in the manner provided by the law under which municipalities are authorized to acquire real property for public purposes, such an air right, easement, or other estate or interest in the property or nonconforming use in question as may be necessary to effectuate the purposes of this Article.
"§ 63-37. Short title.
This Article shall be known and may be cited as the ‘Model Airport Zoning Act.'
"Part 2. Protection of Publicly Owned Airports.
"§ 63-37.1. Short title.
This Part shall be known and may be cited as the ‘Public Airport Airspace Intrusion Protection Act of 1989'.
"§ 63-37.2. Findings of fact.
The General Assembly finds that:
(1)	Obstructions to air navigation may endanger the life and property of users of the airport and of occupants of land in the vicinity, and if an obstruction, in effect reducing the size of the area available for the taking off or landing of aircraft and reducing the value of the property whose use is obstructed;
(2)	Obstructions to air navigation are continuing to be built in North Carolina, as evidenced by continuing applications to the Federal Aviation Administration for hazard studies of proposed obstructions;
(3)	Surveys have shown that despite the existence of this Article since 1943 and of modern city and county zoning enabling acts since 1971 and 1973 respectively, some localities have not attempted to insure conformity of land uses by adopting zoning ordinances to regulate height of structures near public airports;
(4)	The State of North Carolina has continued to appropriate substantial sums of money to local governments and airport authorities for land acquisition at, and improvements, expansions, and safety protection of existing public airports, and for planning and land acquisition for new public airports; and
(5)	The lack of zoning protection for many of these public airports has unnecessarily diminished their usefulness, as obstructions to air navigation have been built.
"§ 63-37.3. Statement of purpose.
In light of the findings made in G.S. 63-37.1, it is necessary to require regulation of obstructions to air navigation around public airports as a condition of further State funding.
"§ 63-37.4.  Definitions.
Unless the context requires otherwise, as used in this Article:
(1)	‘Approach' also includes departure;
(2)	‘Publicly owned airport' means an airport that is owned or operated by:
a.	The State of North Carolina;
b.	A city or county;
c.	The United States of America or any department or subdivision of it;
d.	An airport authority, board or commission created under Chapter 63, Chapter 153A, or Chapter 160A of the General Statutes; or
e.	An airport authority, board or commission created by or under a local act.
(3)	‘Structure' means any object, constructed or installed by man, including buildings, towers, smokestacks, utility poles, and overhead transmission lines.
"§ 63-37.5. Department of Transportation to define approach zones.
(a)	Not later than January 1, 1991, the Board of Transportation shall, by resolution, adopt an individual plan for each publicly owned airport, which shall define the airspace which constitutes the approaches to the airport.  The plan shall take into consideration visual and instrument approaches, any federal policies concerning terminal airspace and obstruction standards, and any airport master plan on file with the Department of Transportation or the Federal Aviation Administration.
	(b) The Board of Transportation must hold a public hearing before adopting such resolution.  The Board shall give written notice of the hearing to each airport and to each city and county with zoning jurisdiction over the approaches.
"§ 63-37.6.  Board of Transportation shall promulgate model ordinance and standards for special use or conditional use permits.
(a)	The Board of Transportation shall by resolution promulgate a model ordinance, which shall set minimum standards for prohibition or regulation of obstructions in the approach zone of a publicly owned airport.
(b)	The model ordinance shall provide for standards to be used by local government in granting or denying special use or conditional use permits for construction, erection, or substantial repair of structures within approach zones of publicly owned airports.  Such standards shall recognize the public safety interests in protecting air navigation near publicly owned airports and the public interest in regulating or prohibiting incompatible uses near publicly owned airports.
"§ 63-37.7. Local zoning to be implemented.
(a)	Not later than October 1, 1991, each city and county, within the jurisdiction that city or county could adopt a zoning ordinance under Article 18 of Chapter 153A of the General Statutes, Article 19 of Chapter 160A of the General Statutes, local act, or G.S. 63-31(d), shall adopt or amend a zoning ordinance so as to adequately protect the approach airspace of a publicly owned airport from intrusions which reduce the utility of the airport or diminish the public investment in the airport, and shall enforce such ordinance.
(b)	Such scheme of regulation may prohibit the construction, erection, or substantial repair of any structure within such approach zone, but shall at least require the issuance of a special use or conditional use permit for the construction, erection, or substantial repair of any structure within such approach zone.
(c)	If the local government elects to require a special use or conditional use permit for the construction, erection, or substantial repair or such structure, the standards for granting or denying such permit shall be those promulgated by the Board of Transportation.
(d)	This section applies to publicly owned airports owned or operated by:
(1)	A city or county
(2)	An airport authority, board or commission created under Chapter 63, Chapter 153A, or Chapter 160A of the General Statutes; or
(3)	An airport authority, board or commission created by or under a local act.
"§ 63-37.8. Sanctions.
	If all of the units of government required to adopt ordinances under G.S. 63-37.8 to cover the approaches to a particular airport do not do so, then the Secretary of Transportation may withhold from expenditure within the jurisdiction of any city or county which  has failed to so adopt such an ordinance any transportation funding, including but not limited to funding for highways, public transportation, airports, rail, or ferries, but may not withhold funds under G.S. 136-41.1 and may refuse to approve any federal transportation funds for which his approval was required.
"§ 63-37.9.  Board of Transportation to regulate structures in approach zones of State or federal airports.
(a)	At the request of the State agency owning or operating the airport, the Board of Transportation shall adopt and enforce ordinances to protect the approach zones of airports owned by the State of North Carolina.  In the exercise of such power, the Board of Transportation shall have all the powers of a city or county which would otherwise have zoning jurisdiction over the territory to be regulated.  In the case of any conflict between ordinances of the Board of Transportation under this section and an ordinance adopted by a city or county, the more stringent regulations as to any particular situation shall prevail.
(b)	At the request of the United States, the Board of Transportation shall adopt and enforce ordinances to protect the approach zones of airports owned by the United States of America or any department or subdivision of it.  In the exercise of such power, the Board of Transportation shall have all the powers of a city or county which would otherwise have zoning jurisdiction over the territory to be regulated.  In the case of any conflict between ordinances of the Board of Transportation under this section and an ordinance adopted by a city or county, the more stringent regulations as to any particular situation shall prevail.
(c)	In the exercise of power under this section, the Board of Transportation shall adopt and enforce such an ordinance in that jurisdiction as if it were the governing board of the jurisdiction which has general authority to adopt zoning regulations for an area, except that any public hearings which may be required by law may be held at any place within the State designated by the Board of Transportation.  The Board of Transportation may delegate to a subcommittee of the Board the duty to hold any such public hearings and the duty of any appeals board or board of adjustment which may be required by law.
"§ 63-37.10. Cooperative programs for enforcement.
Any city or county, or the Board of Transportation, adopting an ordinance under this Part may contract with any other city or county, airport authority, regional council of government, regional planning agency, or with the Department of Transportation or the Department of Natural Resources and Community Development for the enforcement of the ordinance.
"§ 63-37.11. Filing of ordinances.
Each city or county, or the Board of Transportation, adopting an ordinance regulating or prohibiting structures within the approach zone of a publicly owned airport shall keep on file with the Secretary of Transportation a current copy of that ordinance, along with procedures for permit application and an appeal, a schedule for any application fees, and copies of any required forms to be used by applicants or persons bringing an appeal.
"§ 63-37.12. Enforcement and penalties.
Ordinances adopted under this Part shall be enforced as provided by G.S. 63-35.
"§ 63-37.13. Assistance to counties and cities.
	The Department of Natural Resources and Community Development and the Department of Transportation shall provide assistance upon request to the counties and cities in carrying out their functions pursuant to this Part, such as by providing model studies, plans, and ordinances for their consideration.
"§ 63-37.14. Part is supplemental.
	This Part provides a supplemental source of authority in addition to other present or future legislation and shall not be construed as prescribing an exclusive procedure or as granting exclusive powers.
"§ 63-37.15.  Statute of limitations.A cause of action as to the validity of any zoning ordinance, or amendment thereto, adopted under this Article shall accrue upon adoption of the ordinance, or amendment thereto, and shall be brought within nine months as provided in G.S. 1-54.1."
Sec. 2.  This act shall become effective July 1, 1989.